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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> MT, R (on the application of) v Secretary Of State For Home Department  EWCA Civ 412 (23 March 2001)
Cite as:  EWCA Civ 412
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(Mr Justice Tucker)
Friday 23 March 2001
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE MANCE
|on the application of|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR A UNDERWOOD (Instructed by The Treasury Solicitor) appeared on behalf of the Respondent
Crown Copyright ©
Friday 23 March 2001
". . . obviously saw no other possibility to solve the problem [of the cost presented by having to treat a patient such as the applicant] . . . than setting him under pressure. They again and again told him that he will be deported and that he has to leave Germany. Because of this they prolonged his restdocuments allways for only one or two weeks allthough they had the possibility to prolong it for at least 6 months".
"As we know the immigration officers told [the applicant] again and again that he had to leave germany by himself, otherwise he was to be deported by force"
" . . . the social services said to stop his social help if he doesn't leave Germany or cares for travel document. We believe that they only used this official argument to set him under pressure because it was clear that he had the right to stay here for at least several years in his situation regarding the decision of the court in Düsseldorf.
We made a lot of similar experiences with the immigration and social services in Germany, especially with the community of Grefrath and Viersen. As above said usually the immigration officers are set under pressure by the social services themselves to push out as many people out of Germany as possible."
"We believe that we can help [the applicant] if he came back to Germany but for us it's not possible to do anything against all the mistreatments he has to care the time he's alone with immigration and social officers. We do believe that the mistreatments he will have to care, although they happen legally, will be mistreatments against his basic human rights because the German immigration and social officers do not care about his very special personal situation. [He] will surely feel like an abandoned criminal.
We do believe that his dignity will be mistreated, allthough this meaby will not reach a level as high that he can be helped by the German courts."
" . . . felt safer . . . but had to appear at the immigration office to have his stamp renewed every three months."
"I usually accompanied him on these occasions to make sure the officers would not trouble [him] unnecessarily. By this time he had gone through a very bad time with stays and treatment in two different hospitals. The local social service had been quite helpful at the start of [his] suffering. Later they got more and more negative."
"[He] got more and more under psychological pressure and at the same time his state of health got worse and worse."
(a) medical evidence from the applicant's general practitioner, Dr Cartledge, stating that:"When in Germany he also had difficulty accessing health care for his HIV disease and has lost confidence in his capability to be cared for there."
(b) a psychologist's report from a Mr Oakes concluding, among other things, that the applicant's mental health could be seriously harmed and he could be a suicide risk if removed to "Germany or Ethiopia, where he would be subjected to isolation . . . and deprived of essential medical facilities". The bracketing of those two countries in this context is not perhaps one which one would usually expect, but in any event the validity of the whole conclusion obviously depends upon its premise, namely the information received from the applicant about his alleged treatment.
"I have some concern that he was only started on two antiretroviral drugs whereas triple therapy would be the standard of care. I cannot comment further on his care in Germany since I have received no communication about it."
"The Secretary of State bears in mind the comments of the Court of Appeal in ex parte Adan to the effect of that the Secretary of State is not concerned with social welfare in a third country but rather with the 'safety' of that country. However, there may be instances where a person would be so utterly destitute that he would be effectively forced to leave that country. The Secretary of State is entirely satisfied that your client's case does not raise circumstances of this nature. Moreover, looking at matters in the round, the Secretary of State is also satisfied that your client would receive sufficient social assistance and that his return to Germany would not involve any risk of the United Kingdom breaching the provisions of the European Convention of Human Rights. Whilst the Secretary of State maintains his view that your client's account of the treatment received at the hands of the German officials lacks credibility, based on the Secretary of State's considerable experience of the German authorities and his contact with them he is satisfied that if your client was faced with hostile treatment the German authorities would take these concerns seriously and would investigate them and take the appropriate action.
The Secretary of State remains fully satisfied that there is no real risk of your client being required to leave Germany, and that he will continue to receive tolerated status in accordance with German law and Germany's international obligations."
"The authorities in Germany had previously confirmed that your client whilst previously in Germany had received regular treatment both as an outpatient and inpatient, at the University Hospital in Dusseldorf.
On behalf of the Secretary of State officials at the Bundesamt in Germany have contacted the local government authority in Viersen. The authorities in Viersen have confirmed that when your client was previously there he was administered with a combination of antiretroviral treatment for his condition. This treatment will again be available to him on his return. It was also confirmed that an interpreter would be freely available to your client if required.
In view of the German authorities assurances, the Secretary of State is satisfied that your client would not be exposed to any risk of confusion in Germany over his medical condition and the appropriate treatment for it.
The Secretary of State can confirm that proper notice to your client and the German authorities will be given of your client's removal, and that sufficient time will be allowed to ensure that all relevant information about your client's medical condition and treatment is supplied to the German authorities in advance of his return."
"I therefore conclude that the domestic court's obligation on an irrationality challenge in an article 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion from that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here - the right not to be exposed to a real risk of article 3 ill-treatment - is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called 'the discretionary area of judgment' - the area of judgment within which the court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal (see Lord Hope of Craighead's speech in R v Director of DPP ex parte Kebilene  3 WLR 972 at 993-994 - is a decidedly narrow one."